Wampanoag Tribe cancels land use agreement with town

In May, 2012, the Gay Head Wampanoag tribe voted to turn its unused community center into a boutique casino. — File photo by Lisa Vanderhoop

Aquinnah town leaders have reacted with dismay to a Wampanoag Tribe of Gay Head (Aquinnah) decision to back out of a land use agreement, signed on March 7, 2007, that was designed to help both sides avoid expensive lawsuits over zoning and land use issues.

The memorandum of understanding (MOU), known as the “Intergovernmental agreement on cooperative land use and planning between the Wampanoag Tribe of Gay Head (Aquinnah) and the town of Aquinnah,” was an outgrowth of a long legal battle over the limits of tribal sovereignty and the extent to which the tribe must comply with town permitting.

In a letter dated February 11 that was presented to the three town selectmen on Tuesday, February 19, tribe chairman Cheryl Andrews-Maltais said the tribal council voted on February 2 to exercise a clause that allowed either side to terminate the agreement by providing written notice at least 30 days before the annual anniversary of the effective date of the agreement.

The chairman’s two-paragraph letter did not explain the decision, but it comes against the backdrop of the tribe’s continuing efforts to get a slice of the Massachusetts casino pie, which includes a plan to turn the unused tribe community center in Aquinnah into a class II boutique casino.

Disappointment

Spencer Booker, chairman of the selectmen and a member of the tribe, read the tribe’s letter aloud Tuesday. “Any idea why they would want to terminate the agreement,” Mr. Booker asked no one in particular in the room. A brief discussion followed.

Selectman Jim Newman said he was sorry that it had happened because the agreement was intended to provide an alternative to court. “It seems to close doors,” he said.

Selectman Beverly Wright said the agreement had been a means for the tribe and the town to work together. Ms. Wright is a former chairman of the tribe and an elected member of the tribal council. The council vote to withdraw from the agreement was 7-2, with one abstention.

The deepening division between tribe and town leaders is reflected in Ms. Andrews-Maltais’s refusal to seat Ms. Wright on the tribal council because she is also a selectman. Ms. Wright is appealing that decision in the tribe’s court system, according to one knowledgable tribe member who would only speak off the record.

In a telephone conversation on Friday, Ms. Wright said she was unable to comment on any legal matters.

In a telephone conversation following the meeting, Mr. Booker told The Times that the tribe’s letter and the failure of the tribe to speak to selectmen about their objections or concerns took him completely by surprise.

Mr. Booker said that in the past tribe leaders were focused on a mainland casino and never envisioned bringing gaming to the town. He said one of the fundamental questions is what type of community the tribe wants.

Larry Hohlt, a retired lawyer and president of the Aquinnah/Gay Head Community Association Inc., was in the forefront of the legal battle to defend the terms of the settlement act that ended with the SJC decision that the tribe was subject to local zoning regulations.

“It is very disappointing that the tribe has decided to terminate the memorandum of understanding with the town,” Mr. Hohlt said in an email to The Times. “Much dedicated effort by all concerned went into creating the MOU and without it the risk is that issues otherwise covered by the MOU’s procedures will now move straight to litigation, which is almost always an expensive and time-consuming endeavor.”

Mutual benefit

The 1983 settlement agreement that led to federal recognition of the Wampanoags was signed by the tribe, the Gay Head Taxpayers Association (since renamed the Aquinnah/Gay Head Community Association Inc.), the town, and the state. It specifically provides that the settlement lands shall be subject to all federal, state, and local laws, including town zoning laws, state and federal conservation laws, and the regulations of the Martha’s Vineyard Commission.

In the winter of 2001, the tribe erected a small shed on the Cook property without a town building permit. In December 2004, the state’s highest court ruled that the tribe, then the only federally recognized Native-American tribe in Massachusetts, was not immune from zoning enforcement under its claim of sovereign immunity.

The intergovernmental agreement outlined a parallel permitting process overseen by a seven-member Aquinnah planning advisory board, to include tribe and town members.

The introduction stated that the agreement “represents good faith commitments which are being made by each of the parties in a spirit of cooperation, and is based on the belief that these commitments will be of mutual benefit to the parties.”

The tribe agreed to adopt and enforce the laws and regulations that were, at a minimum, substantially equivalent to the town zoning bylaws that were in place on the date of the 1983 settlement agreement, and any subsequent amendments.

The tribe reserved the right to disagree with the town’s interpretation of the SJC decision. Soon after the MOU was signed, the tribe sought Martha’s Vineyard Commission approval for the still unfinished community center.

Unfair compromises

Ms. Andrews-Maltais did not reply to requests by The Times for comment.

In a statement to the Gazette for publication, the tribe chairman said the agreement required the tribe to relinquish too many rights and unnecessarily compromised tribe sovereignty.

Lawyer Ron Rappaport represented the town in the creation of the MOU. “That agreement was approved by the tribal council, the chairman of the tribe, the Aquinnah town meeting and the selectmen,” Mr. Rappaport told The Times in a telephone call Friday. “It was a fully participatory, public process, of which all governmental bodies signed off on.”

The MOU was the product of negotiations over more than three years that included selectmen, Mr. Rappaport, tribe chairman Donald Widdiss, and Doug Luckerman, the Wampanoag tribe’s attorney.

In January 2007, the Wampanoag council voted overwhelmingly in favor of the 12-page agreement.

“I think the tribe and the town are both on the same page,” Mr. Widdiss said at the time. “Let’s try a process that includes mediation and dispute resolution so that we don’t spend the rest of our lives in court.”

Mr. Luckerman said, “I know that there are people on both sides that still are wary of the other side, and that is to be expected after the long history here, but I think that there is an opportunity, if people want to take it, to find a way to work together and resolve the fact that there are these two sovereign governments living within very close proximity to each other.”

Michael Hebert, then chairman of the selectmen and one of the agreement’s strongest backers, said, “It is about trying to work together instead of having to have the courts fight our battles for us.”

Stakes raised

The MOU describes a detailed process for resolving disputes. The decision to terminate the MOU may be the first step in the tribe’s declared intention to turn its community center into a gaming facility.

In May 2012, the tribe voted to use the center for Class II gaming, which encompasses high stakes bingo, poker, pull-tab cards and associated electronic games that do not require coin slots. Unlike class III gaming, which encompasses all types of gambling and requires a tribe-state agreement, tribes may regulate Class II gaming on their own lands without state authority, as long as the state in which the tribe is located permits that type of gambling.

Mr. Rappaport, in a seven-page opinion dated April 27, 2012, said the tribe cannot operate a gaming casino in Aquinnah because the lands described in the settlement act are subject to the zoning regulations in effect at that time.

Town residents, including many tribe members, have questioned what a gaming facility would mean to the character of the Island’s small town.

The building where the tribe would house a Class II gaming facility was built over two summers by Air Force reservists, as part of a training exercise. For years, the 6,200-square-foot structure remained unfinished and open to the weather, despite an agreement under which the tribe was to complete the remaining 20 percent of the project.

A general membership vote to approve the use of the community center for gaming, and a subsequent vote to reaffirm that decision reflected a strong split between tribal members who live on Martha’s Vineyard and members from the New Bedford area, according to several members who spoke about the meeting but asked not to be identified due to the tribal leadership’s penchant for secrecy.

Any effort to turn the community center into a casino would come with a price tag. The U.S. Department of Housing and Urban Development has told the tribe that should it proceed with “an ineligible use of the property,” HUD is to be reimbursed the cumulative amount of funds awarded to the tribe for the project, at fair market value for a total of $1,100,000.